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Medical malpractice proposal under negotiation

In this file photo, Sen. Gay Kernan, R-Hobbs, asks questions during a debate on the Senate floor. She is among the sponsors of legislation that would revise New Mexico’s medical malpractice law. (Eddie Moore/Albuquerque Journal)

Copyright © 2021 Albuquerque Journal

SANTA FE – Hospitals, lawyers and others interested in competing bills to overhaul New Mexico’s medical malpractice law are working on a compromise of sorts as the session heads into its final days.

The revised proposal could surface soon in the Senate Judiciary Committee.

Whether the parties will reach agreement – and the committee will approve – is unclear.

“Everybody is mildly unhappy, which is perfect,” said Daymon Ely, a Corrales Democrat and sponsor of one of the bills.

Sen. Gay Kernan, a Hobbs Republican and co-sponsor of the other bill, said the parties are at least making progress in negotiations.

“Of course, no one is going to be 100 percent happy,” Kernan said.

The state Supreme Court, meanwhile, delivered its own news Monday, upholding the constitutionality of a $600,000 cap on damages under the state’s existing medical malpractice system. The case centered on a Placitas woman injured during a gynecological procedure in 2011.

Her attorneys argued that the $600,000 cap on compensatory damages for lost wages, pain and suffering violated her constitutional right to have a jury decide her case. The justices, however, ruled that the cap “does not invade the jury’s role as fact-finder.”

The decision comes as lawmakers are considering whether to prohibit hospitals from being covered by the damages cap, among other potential changes.

Before the Senate Judiciary Committee are two proposals:

• House Bill 75, sponsored by Ely, won House approval on a 35-34 vote last month.

It would remove hospitals from the protection afforded by the $600,000 cap and other benefits offered by participation in the state’s patient compensation fund.

Patients, plaintiff’s attorneys and families who say they have been harmed by hospital wrongdoing have backed the bill, arguing the $600,000 cap allows corporate hospitals to avoid full responsibility for their mistakes. Ely also says the change would shore up the finances of the patient compensation fund.

• Senate Bill 239 would allow hospitals to remain in the Medical Malpractice Act – with some adjustments to their participation in the compensation fund – and make broader changes to the law. It would raise the cap on damages from $600,000 to $750,000.

It’s backed by a bipartisan group of senators and by the New Mexico Hospital Association, Medical Society and a variety of other groups. They argue their proposal, not Ely’s, would strengthen the finances of the compensation fund.

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